-43There is no duty to publish what is not true: there is no interest in being misinformed.
These are general propositions going far beyond the mere protection of reputations.”
106.
There can be no quarrel with that proposition. Indeed, Article 16 of
the Bill of Rights expressly makes exercise of the right to freedom of expression
subject to restrictions necessary for respect of the rights or reputations of others.
So plainly, a purveyor of libellous statements cannot claim constitutional
protection for his conduct.
107.
But the balance, properly understood, remains of great importance.
It does not involve, as Mr Thomas suggests, a misguided attempt to weigh the
claims to freedom of expression by a defaming defendant against the lawabiding victim’s right to reputation.
The balance involves two important
competing interests affecting society at large, described in the main judgment in
Dow Jones & Co Inc v Gutnick in the following terms:92
“It is necessary to begin by making the obvious point that the law of defamation seeks
to strike a balance between, on the one hand, society's interest in freedom of speech
and the free exchange of information and ideas (whether or not that information and
those ideas find favour with any particular part of society) and, on the other hand, an
individual's interest in maintaining his or her reputation in society free from
unwarranted slur or damage. The way in which those interests are balanced differs
from society to society.”
108.
The power of the internet is such that it greatly magnifies what is at
stake in considering how that balance should be struck. It must certainly be
recognized that a defamation circulated on the internet may do enormous
damage to a person’s reputation. In Crookes v Newton,93 Abella J cited the
following excerpt from an article by Professor Lyrissa Barnett Lidsky:
“Although Internet communications may have the ephemeral qualities of gossip with
regard to accuracy, they are communicated through a medium more pervasive than
print, and for this reason they have tremendous power to harm reputation. Once a
message enters cyberspace, millions of people worldwide can gain access to it. Even
if the message is posted in a discussion forum frequented by only a handful of people,
any one of them can republish the message by printing it or, as is more likely, by
92
(2002) 210 CLR 575 at §23, per Gleeson CJ, McHugh, Gummow and Hayne JJ.
93
[2011] 3 SCR 269 at §37.
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